In Re: The Adoption of S.A.W. ( 2015 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
December 7, 2015
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
In Re: The Adoption of S.A.W. OF WEST VIRGINIA
No. 14-0969 (Nicholas County 13-A-5)
MEMORANDUM DECISION
Petitioner D.S., 1 pro se, appeals two orders of the Circuit Court of Nicholas County
regarding the adoption of the minor child, S.A.W. In the first order, entered on August 22, 2014,
the circuit court determined that petitioner, S.A.W.’s biological father, abandoned her pursuant to
West Virginia Code § 48-22-306, and granted the petition of respondents N.W.B. and C.B.,
S.A.W’s mother and her husband, to allow C.B. to adopt S.A.W. In the second order, also entered
on August 22, 2014, the circuit court deemed S.A.W. adopted by Respondent C.B. and changed
her last name to that of C.B. Respondents, by counsel W. Brad Dorsey, filed a summary response,
and petitioner filed a reply.2
The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
1
Adoption cases are confidential pursuant to West Virginia Code § 48-22-702(a). The
parties and the minor child are referred to only by their initials.
2
Respondents also filed a motion to have transcripts produced of the September 27, 2013,
and March 7, 2014, hearings before the circuit court and a motion to have the costs of producing
the transcripts taxed to petitioner. Petitioner filed a response to both motions on November 10,
2014. By an amended scheduling order, entered on December 9, 2014, this Court granted the
motion for the production of the September 27, 2013, and March 7, 2014, transcripts.
Respondents’ motion for costs was deferred, and respondents were directed to file a statement of
costs. In their statement of costs, filed on April 13, 2015, respondents state that the total cost of the
transcripts was $2,567.67, and they attached invoices in support thereof. We will address
respondents’ motion to have the costs of the transcripts taxed to petitioner herein.
1
S.A.W. was born on April 30, 2010. Petitioner is S.A.W.’s biological father. Petitioner and
Respondent N.W.B were never married. Since 2000, petitioner has been married to another
woman who did not know of S.A.W.’s existence until after respondents filed their petition for
adoption.
Respondents married on February 25, 2012, and S.A.W. has resided with her mother and
Respondent C.B. since that time. On January 7, 2013, respondents filed their petition to allow
Respondent C.B. to adopt S.A.W. in the Circuit Court of Nicholas County. Petitioner filed a
response to respondents’ petition on March 4, 2013. A final hearing was originally held on
September 27, 2013, but was continued so that the parties could engage in settlement discussions.
The parties were unable to reach an agreement, and the final hearing occurred on March 7, 2014, at
which the parties presented witnesses and tendered exhibits. By separate orders entered on August
22, 2014, the circuit court (1) determined that petitioner abandoned S.A.W. pursuant to West
Virginia Code § 48-22-306; (2) granted respondents’ petition to allow Respondent C.B. to adopt
S.A.W.; and (3) deemed S.A.W adopted by Respondent C.B. and changed her last name to that of
C.B. Petitioner now appeals the circuit court’s August 22, 2014, orders, and argues that the
circuit court clearly erred in finding that petitioner abandoned S.A.W. and abused its discretion in
granting respondents’ petition for adoption. We disagree.
This Court has previously held that
In reviewing challenges to the findings and conclusions of the circuit court,
we apply a two-prong deferential standard of review. We review the final order and
the ultimate disposition under an abuse of discretion standard, and we review the
circuit court’s underlying factual findings under a clearly erroneous standard.
Questions of law are subject to de novo review.
Syl. Pt. 2, Walker v. W. Va. Ethics Comm’n, 201 W.Va. 108, 110, 492 S.E.2d 167, 169 (1997). “An
appellate court may not decide the credibility of witnesses or weigh evidence as that is the
exclusive function and task of the trier of fact.” State v. Guthrie, 194 W.Va. 657, 669 n. 9, 461
S.E.2d 163, 175 n. 9 (1995).
After our review of the record on appeal, we find that the circuit court’s orders correctly
resolve all issues raised by petitioner except for the two issues that we now address. Petitioner first
contends that the circuit court admitted at the March 7, 2014, hearing that the court did not have
access to the court file of the separate case petitioner filed in the Family Court of Wood County in
August of 2011, in which petitioner sought an allocation of parenting time with regard to S.A.W.3
Petitioner’s contention is not supported by the transcript of that hearing, in which the circuit court
3
At the time of the filing of petitioner’s Wood County petition, Respondent N.W.B. and
S.A.W. were residing in that county. The Wood County case was subsequently transferred to
Nicholas County, and the circuit court consolidated it with the adoption case. By an order entered
on February 24, 2014, the circuit court bifurcated the issues, finding that it would address the issue
of parenting time (if necessary) only after it decided the adoption petition.
2
stated that it was going to “have the Clerk send me up a complete copy of [the Wood County] file.”
Furthermore, in the first of its two orders, the circuit court stated that it was taking “[j]udicial
[n]otice of the contents of the Court File” from the Wood County case. Therefore, we reject
petitioner’s assertion that the circuit court did not have the documents that petitioner argues that
the court should have had.
Second, petitioner asserts that his testimony as to whether he abandoned S.A.W. pursuant
to West Virginia Code § 48-22-306 was more credible than that of respondents. However,
pursuant to Walker, we review the circuit court’s factual findings only for clear error. In making its
credibility determinations, the circuit court heard the parties’ testimony and was able to observe
their demeanors on the stand. While petitioner also challenges the circuit court’s ultimate
conclusion that he abandoned S.A.W., for the reasons stated by the circuit court, we determine that
the circuit court did not clearly err in finding that petitioner abandoned S.A.W. pursuant to West
Virginia Code § 48-22-306.
Having reviewed the circuit court’s August 22, 2014, orders, we hereby adopt and
incorporate the circuit court’s well-reasoned findings and conclusions as to all other issues raised
by petitioner in this appeal. The Clerk is directed to attach a copy of each of the circuit court’s
orders to this memorandum decision. 4 We conclude that the circuit court did not abuse its
discretion in granting respondents’ petition to allow Respondent C.B. to adopt S.A.W.
As to the costs of September 27, 2013, and March 7, 2014 hearing transcripts, those costs
are taxed to petitioner. We reviewed both transcripts during our consideration of petitioner’s
appeal in this matter. As noted above, we find no error in—and now affirm—the circuit court’s
August 22, 2014, orders. Therefore, pursuant to Rule 24(a) of the West Virginia Rules of Appellate
Procedure, we grant respondents’ motion to tax the costs for the production of the September 27,
2013, and March 7, 2014 hearing transcripts to petitioner in the amount of $2,567.67.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: December 7, 2015
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
4
Certain names have been redacted. See fn. 1, supra.
3